Citation Nr: 0629683
Decision Date: 09/19/06 Archive Date: 09/26/06
DOCKET NO. 03-32 591 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. Whether new and material evidence was received to reopen
a claim for entitlement to service connection for left
shoulder degenerative joint disease with acromioclavicular
joint separation.
2. Entitlement to service connection for left shoulder
degenerative joint disease with acromioclavicular joint
separation.
3. Entitlement to a rating in excess of 10 percent for right
anterior cruciate ligament insufficiency with residual
instability.
4. Entitlement to a rating in excess of 10 percent for
traumatic arthritis of the right knee.
REPRESENTATION
Appellant represented by: Virginia Department of
Veterans Affairs
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Douglas, Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
September 1977 to January 1986.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions in December 2000 and
February 2002 rating decision by the Roanoke, Virginia,
Regional Office (RO) of the Department of Veterans Affairs
(VA). In July 2006, the veteran testified at a personal
hearing before the undersigned Veterans Law Judge. A copy of
the transcript of that hearing is of record.
Although the RO adjudicated the left shoulder service
connection issue on the merits in February 2002, the Board is
required to determine whether new and material evidence has
been presented when a claim has been previously disallowed
based upon the same factual basis. Barnett v. Brown, 83 F.3d
1380, 1384 (Fed. Cir. 1996). For this reason, the Board has
listed the issue on the title page as whether new and
material evidence was received to reopen the claim for
service connection.
The Board notes that the veteran raised the issue of
entitlement to service connection for a donor site scar below
the right knee at his hearing in July 2006, but that a review
of the record indicates service connection was established
for a residual surgical scar to the right knee in a November
2003 rating decision. To the extent the veteran may be
raising a claim for an additional scar, the matter is
referred to the RO for appropriate action.
While the issue of whether new and material evidence has been
submitted to reopen the claim for service connection for the
left shoulder disorder is adjudicated, the service connection
and increased rating issues on appeal are addressed in the
REMAND portion of the decision below and are REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.
FINDINGS OF FACT
1. In a June 1999 rating decision the RO denied entitlement
to service connection for left shoulder degenerative joint
disease with acromioclavicular joint separation; the veteran
did not appeal.
2. Evidence added to the record since the June 1999 rating
decision as to the claim for entitlement to service
connection for left shoulder degenerative joint disease with
acromioclavicular joint separation is neither cumulative or
redundant and by itself or in connection with evidence
previously assembled is so significant that it must be
considered in order to fairly decide the merits of the claim.
CONCLUSION OF LAW
New and material evidence was received and the claim for
entitlement to service connection for left shoulder
degenerative joint disease with acromioclavicular joint
separation is reopened. 38 U.S.C.A. § 5108 (West 2002);
38 C.F.R. § 3.156 (effective prior to August 29, 2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). In this case,
the veteran was notified of the VCAA duties to assist and of
the information and evidence necessary to substantiate his
new and material evidence claim by correspondence dated in
May 2001. During the pendency of this appeal, the United
States Court of Appeals for Veterans Claims (hereinafter
"the Court") in Dingess v. Nicholson, 19 Vet. App. 473
(2006), found that the VCAA notice requirements applied to
all elements of a claim.
In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held
that in order to successfully reopen a previously and finally
disallowed claim, the law requires the presentation of a
special type of evidence-evidence that is both new and
material. The terms "new" and "material" have specific,
technical meanings that are not commonly known to VA
claimants. Because these requirements define particular
types of evidence, when providing the notice required by the
VCAA it is necessary, in most cases, for VA to inform
claimants seeking to reopen a previously and finally
disallowed claim of the unique character of evidence that
must be presented. Because of the decision in this case, any
deficiency in the provided VCAA notice is harmless error. To
move forward with the determination would not cause any
prejudice to the appellant.
New and Material Evidence Claim
VA regulations providing the conditions under which a
previously denied claim may be reopened were amended
effective for claims filed on or after August 29, 2001.
38 C.F.R. § 3.156(a). A review of the record shows the
appellant submitted a request to reopen his claim in January
2000.
VA regulations effective prior to August 29, 2001, provided
that under 38 U.S.C.A. § 5108, "[i]f new and material
evidence is presented or secured with respect to a claim
which has been disallowed, the Secretary shall reopen the
claim and review the former disposition of the claim."
"New and material evidence" meant evidence not previously
submitted to agency decision makers which bears "directly
and substantially" upon the specific matter under
consideration. Such evidence must have been neither
cumulative nor redundant, and, by itself or in connection
with evidence previously assembled, such evidence must have
been "so significant that it must be considered in order to
fairly decide the merits of the claim." 38 C.F.R.
§ 3.156(a) (prior to August 29, 2001); see also Hodge v.
West, 155 F.3d 1356 (Fed. Cir. 1998). The claimant does not
have to demonstrate that the new evidence would likely change
the outcome of the prior denial. Rather, it is only
important that there be a complete record upon which the
claim can be evaluated and that the new evidence may
contribute to a more complete picture of the circumstances
surrounding the origin of a claimant's injury or disability.
Hodge, 155 F.3d at 1363.
The Court has held that the credibility of evidence must be
presumed for the purpose of deciding whether it is new and
material. Justus v. Principi, 3 Vet. App. 510, 513 (1992).
The United States Court of Appeals for the Federal Circuit
(Federal Circuit) has held, however, that evidence that is
merely cumulative of other evidence in the record cannot be
new and material even if that evidence had not been
previously presented to the Board. Anglin v. West, 203 F.3d
1343 (2000).
In a June 1999 rating decision the RO denied entitlement to
service connection for left shoulder degenerative joint
disease with acromioclavicular joint separation on the
merits. It was noted, in essence, that the veteran's present
shoulder disorder was due to a post-service work-related
injury. The veteran did not appeal the rating decision and
it became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R.
§ 3.104 (2005).
The evidence added to the record since the June 1999 rating
decision includes the veteran's requests to reopen his claim
and medical records providing additional diagnoses of left
shoulder disability. In a January 2000 private medical
statement Dr. S.P. noted the veteran had undergone
acromioplasty of the left shoulder in January 1996 and that
he had complained of left shoulder pain in August 1978 during
active service. The physician, in essence, noted this
appeared to be a service-related orthopedic issue. It is
significant to note that the physician provided a similar
opinion in January 1999, but that the January 2000 statement
is augmented by reference to a specific service medical
report. Neither report included any history of post-service
left shoulder injuries.
Based upon a comprehensive review of the record, the Board
finds the evidence added to the claims file since the June
1999 rating decision is neither cumulative nor redundant of
the evidence of record and by itself or in connection with
evidence previously assembled is so significant that it must
be considered in order to fairly decide the merits of the
claim. As the January 2000 private medical opinion must be
presumed credible for the purpose of reopening and addresses
directly the basis for the prior denial of the veteran's
claim, the evidence is "new and material" and the claim
must be reopened.
ORDER
New and material evidence was received to reopen the claim
for entitlement to service connection for left shoulder
degenerative joint disease with acromioclavicular joint
separation; to this extent the appeal is granted.
REMAND
As noted above, there has been a significant recent change in
VA law. The veteran was notified of the VCAA as to his
service connection and increased rating claims in January
2006. He was provided additional VCAA notice as to all
elements of his claims in March 2006.
The Board notes the revised VCAA duty to assist requires that
VA make reasonable efforts to assist the claimant in
obtaining evidence necessary to substantiate a claim and in
claims for disability compensation requires that VA provide
medical examinations or obtain medical opinions when
necessary for an adequate decision. See 38 C.F.R. § 3.159.
VA has a duty to assist the veteran which includes conducting
a thorough and contemporaneous medical examination. See
Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v.
Derwinski, 1 Vet. App. 121, 124 (1991).
In this case, service medical records show the veteran
complained of left shoulder pain in August 1978 and that in
October 1978 he sustained a left shoulder injury in an
automobile accident. Subsequent service records are negative
for treatment or diagnoses of any chronic left shoulder
disorder. The veteran denied any history of shoulder pain in
a May 1984 separation examination report. Private medical
records dated from June 1995 show the veteran complained of
left shoulder pain and records indicates he underwent left
acromioplasty in January 1996. Reports dated from July 1997
noted chronic neck, back, and left shoulder pain subsequent
to the veteran having been hit in the back by an auto lift in
approximately 1994. During a March 1999 VA fee basis
physical examination, the veteran related that over the
years, he had sustained several injuries to the left
shoulder.
The veteran testified in July 2006 that he had been receiving
Social Security Administration (SSA) disability benefits for
several years primarily because of his left shoulder
disorder. There is no evidence of any VA attempt to obtain
the records associated with that claim. The veteran also
contends that his service-connected right knee disabilities
have increased in severity since his last VA examination in
March 2003. Therefore, the Board finds additional
development is required prior to appellate review.
Accordingly, the case is REMANDED for the following action:
1. The veteran should be contacted and
requested to identify any additional
existing VA or non-VA medical records
pertinent to his claims. He should be
specifically requested to identify all
sources of medical treatment he received
for his left shoulder disorder related to
his work-related injury in approximately
1994. After he has signed the
appropriate releases, those records
should be obtained and associated with
the claims folder. All attempts to
procure records should be documented in
the file. If records identified by the
appellant cannot be obtained, a notation
to that effect should be inserted in the
file. The appellant and his
representative are to be notified of
unsuccessful efforts in this regard, in
order that he be provided the opportunity
to obtain and submit those records for VA
review.
2. Appropriate efforts should be taken
to obtain a copy of any Social Security
Administration disability
determination, as well as all
associated records.
3. The veteran should be scheduled for a
VA orthopedic examination for opinions as
to the current nature and severity of his
service-connected right knee
disabilities. An opinion should also be
provided as to whether there is at least
a 50 percent probability or greater (at
least as likely as not) that any present
left shoulder disorder was incurred as a
result of service.
All indicated tests and studies,
including range of motion studies, are to
be performed. Prior to the examination,
the claims folder must be made available
for review of the case. A notation to
the effect that this record review took
place should be included in the report.
The physician should address whether pain
could significantly limit functional
ability during flare-ups or on repeated
use over a period of time. These
determinations should also, if feasible,
be portrayed in terms of the degree of
additional range of motion loss or
favorable or unfavorable ankylosis. If
the examiner is unable to make such
determinations, it should be so indicated
on the record. Opinions should be
provided based on the results of
examination, a review of the medical
evidence of record, and sound medical
principles. All examination findings,
along with the complete rationale for all
opinions expressed, should be set forth
in the examination report.
4. The veteran must be given adequate
notice of the date and place of any
requested examination. A copy of all
notifications, including the address
where the notice was sent must be
associated with the claims folder. The
veteran is to be advised that failure to
report for a scheduled VA examination
without good cause shown may have adverse
effects on his claims.
5. After completion of the above and any
additional development deemed necessary,
the issues on appeal should be reviewed
with consideration of all applicable laws
and regulations. If any benefit sought
remains denied, the veteran and his
representative should be furnished a
supplemental statement of the case and be
afforded the opportunity to respond.
Thereafter, the case should be returned
to the Board for appellate review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs